By Cameron Betterley, Albany Government Law Review
I. A Widespread Problem
The devastating health effects of tobacco use are well documented and widely known. Tobacco use is the number one cause of preventable death in the United States, resulting in 480,000 deaths annually, or approximately one of every five deaths each year. Twenty-five thousand of those deaths occur in the State of New York. Indeed, “more deaths are caused each year by tobacco use than by all deaths from [h]uman immunodeficiency virus (HIV), [i]llegal drug use, [a]lcohol use, [m]otor vehicle injuries, [f]irearm-related incidents.” The adverse health effects are not limited to smokers, as exposure to secondhand smoke causes approximately 42,000 deaths per year in the United States—2,500 of those who die are New Yorkers. Moreover, while extraordinary progress has been made in the last fifty year—“reductions in smoking prevalence avoided an estimated 3 million deaths between 1964 and 2000”—efforts have been less successful with the poor and the less educated. In 2006, for example, 30% of the least educated were smokers, while only 9% of the most educated were.
II. No Right to Smoke
Federal law does not protect tobacco users or entitle them to equal protection in all aspects of employment, including hiring, firing, and promotions. The Equal Employment Opportunity Commission, for example, does not recognize tobacco users as a protected class. However, twenty-nine states and the District of Columbia currently offer employment protections to tobacco users through laws “that expressly prohibit employers from taking adverse employment actions on an employee’s off-duty legal conduct such as smoking[.]”
New York, which is among these states, actually goes further, prohibiting an employer from firing or from refusing to hire or employ an employee due to his or her legal use of any consumable products outside of work. This article argues that New York law should be amended to allow employers in New York to fire, or to refuse to hire, employees or potential employees who smoke or otherwise consume tobacco.
By Joanna Pericone, Albany Government Law Review
In 1977 a fire damaged the building of the New York State Unemployment Insurance Department. The employees were moved to a temporary building that posed several dangerous and uncomfortable working conditions. The building was essentially unheated, electrical cords blew fuses and posed a walking hazard because they were strewn across the floor. One of the two toilets in the building was backed up and there were only two exits in the building, one of which was blocked and the other was hard to open. After the employees took their work and reported to another temporary building, their supervisor ordered them to go back to the deplorable building, but the employees refused to return. The New York Court of Appeals held that the workers had engaged in an unlawful strike, in violation of New York’s Civil Service Law, and that they were subsequently liable for sanctions imposed by their employer. Although the conditions of the workplace created a “fire trap” and the strike was prompted out of concerns for safety, the Court found this to be irrelevant; under New York’s Public Employee’s Fair Employment Act, commonly known as the Taylor Law, the reason for a public employee participating in any kind of a work stoppage is not pertinent when determining whether an unlawful strike has occurred. 
By Hanok George, Albany Government Law Review
Social media has become a topic of increasing interest among employers, as the employees’ statements within such media can have wide ranging impacts upon the employer. These statements can reach millions of people— including customers, venders, suppliers and many others. Due to the broad sweeping impacts associated with social media, employers have created social media policies for employees that restrict the employees’ ability to divulge work-related information on websites such as Facebook, Twitter, MySpace, etc. However, these policies walk a fine line between protecting the employer’s interests and infringing on the employees’ rights to concerted activity under Section seven of the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) has found many employers’ social media policies to constitute unfair labor practices. Continue reading
By Anjalee Daryani, Albany Government Law Review
On January 11, 2012, the Supreme Court issued a landmark decision concerning religious liberty. The Court recognized for the first time a “ministerial exception,” precluding employment discrimination claims in the context of “the employment relationship between a religious institution and its ministers.” The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was instituted on behalf of a teacher who was employed by a Lutheran school and had been fired for threatening to file a lawsuit for the church’s violation of the Americans with Disabilities Act (ADA). The Supreme Court acknowledged that the interference by states into a religious groups’ employment decision, would be an intrusion on the internal governance of a religious organization, and as a result would be infringing upon their rights under the Free Exercise Clause of the First Amendment. Continue reading